581 F.

2d 1111

Ronald Augustus DiPAOLA, Appellant,

v.
Walter RIDDLE, Superintendent, Virginia State Penitentiary,
James D. Swinson, Sheriff, Fairfax County, William
J. Powell, Sheriff, Sussex County, Appellees.
No. 77-1293.

United States Court of Appeals,

Fourth Circuit.
Argued Oct. 6, 1977.
Decided Aug. 21, 1978.

John Kenneth Zwerling, Richmond, Va. (J. Flowers Mark, Alexandria,

Va., on brief), for appellant.
Jerry P. Slonaker, Asst. Atty. Gen., Richmond, Va. (Anthony F. Troy,
Atty. Gen. of Virginia, Richmond, Va., on brief), for appellees.
Before HAYNSWORTH, Chief Judge, FIELD, Senior Circuit Judge, and
THOMSEN* , Senior District Judge.
HAYNSWORTH, Chief Judge:

Prior to and during the trial in the state court for the possession of marijuana
with the intention of distributing it, DiPaola sought the suppression on
constitutional grounds of marijuana that had been seized. At that time, however,
he did not object to the search on the ground that there had been a "no knock"
entry of the house and no announcement that the ununiformed intruders were
policemen. DiPaola had been in the basement of the house, and his counsel
represented that he knew nothing of the manner in which entry was effected.
One of the persons arrested, however, was on the first floor of the house and
knew of the "no knock" entry. He was represented by the same lawyers who
represented DiPaola, and they reported that they did not learn of the nature of
the entry from their other client until shortly after a jury found DiPaola guilty,
though this was several months before the court imposed its sentence upon
DiPaola. The question is whether DiPaola had an opportunity to fully litigate

his "no knock" entry claim in the courts of Virginia so as to foreclose his
assertion of that claim in a federal habeas corpus proceeding under the rule of
Stone v. Powell, 428 U.S. 465, 96 S.Ct. 3037, 49 L.Ed.2d 1067 (1976).
I.
2

Acting upon an informant's tip, a regular, full time, but undercover policeman
went to a house in Fairfax County, Virginia posing as a prospective purchaser
of marijuana. His informant and DiPaola were in the yard. DiPaola invited him
into the house, and the three went down into a basement room where there were
two others. They negotiated for the purchase of twenty pounds of marijuana,
and the box was given to Colavita, the policeman, for inspection. After the
negotiations were complete, on a signal from Colavita, several policemen in
civilian clothing and with drawn guns entered the house. The front door was
forced open. A glass pane in the kitchen door was broken so that it might be
unlocked from the inside. Perhaps jokingly, one of the intruders informed the
people on the first floor of the house, "This isn't a bust. This is just a big ripoff."

One of the intruders, immediately after his entry into the house, went down into
the basement room. Another soon followed. They identified themselves as
policemen, and they arrested DiPaola and his two companions, and at least
pretended to arrest Colavita, the policeman who had been invited in as the
purchaser of the marijuana. They returned upstairs with the four persons placed
under arrest and the marijuana, and then disclosed to the occupants of the first
floor their identity as policemen.

Before and during DiPaola's trial, his lawyer sought the suppression of the
marijuana, contending that there was no probable cause for a search by the
policemen who participated in the forceful entry, and that there was no warrant.

Only one of the persons on the first floor of the house at the time of the forced
entry was arrested. That one, Scheps, was represented by the same lawyers who
represented DiPaola. Scheps, of course, knew all about the forced entry, but the
lawyers later filed affidavits that Scheps did not tell them about the manner in
which the intruding policemen gained their entrance until they were preparing
for Scheps' trial, shortly after the jury had found DiPaola guilty. During
DiPaola's trial, they say, they were unaware of the factual basis of the claim
that is now asserted in DiPaola's behalf by other lawyers.II.

When this federal habeas claim was first asserted, the district court concluded

that the writ should issue. The statute, 18 U.S.C.A. 3109, requiring federal
law enforcement officers to knock and to identify themselves, had no
application to the conduct of these state policemen, but the district court
thought that the breaking of the doors and the absence of any immediate
announcement was so egregious that it amounted to a violation of the Fourth
Amendment.1 The Commonwealth appealed, and, thereafter, the Supreme
Court announced its decision in Stone v. Powell. We remanded for
reconsideration in light of Stone v. Powell. The district court then held that the
claim was foreclosed by that opinion of the Supreme Court, and DiPaola then
brought the case back to us.
III.
7

Stone v. Powell's rule of preclusion is not dependent upon a finding that the
contention was asserted and fully litigated in the state courts. It is enough that
the state provided the mechanism and an opportunity for such full and fair
litigation. See, e. g., Doleman v. Muncy, 579 F.2d 1258 (4th Cir. 1978). Our
task then is to determine whether Virginia law provided DiPaola an opportunity
for the litigation of his claim, notwithstanding the lawyer's ignorance of its
factual basis before the jury returned its verdict in light of Virginia's procedural
rule, stated in Slayton v. Parrigan, 215 Va. 27, 205 S.E.2d 680 (1974), that
evidentiary rulings are not open to subsequent review in the absence of a
contemporaneous objection. We think there was such an opportunity.

DiPaola was tried in June 1974. According to his trial lawyers they did not
learn from Scheps of the nature of the entry by the several policemen until later
that month or early in July. The judge, however, did not sentence DiPaola until
October or November. The record indicates that the trial lawyers did file some
post-trial motions, but they did not seek an order to set aside the verdict or to
award a new trial upon the ground of after-discovered evidence providing them
with a factual basis to strike the fruits of the search from the evidence. Under
Virginia rule 3A:22 provision is made for motions for new trials and to set
aside a verdict of guilty if made within twenty-one days after the entry of the
final order. Under the rule the motion could have been made within twentydays after the imposition of sentence in October or November. Had such a
motion been made, we can find nothing in Virginia law which would suggest
that an evidentiary hearing and a ruling on the constitutional claim would not
have been appropriate and required.

Slayton v. Parrigan, on its face, is a perfectly acceptable rule. The trial judge
should have the first opportunity to rule upon objections to evidence, and his
ruling should be made at the time the evidence is offered or even in advance of

trial. Ordinarily, a party should not be permitted to stand silently by and later to
contest the admissibility of crucial evidence only after the fact finding has gone
against him. But surely Slayton v. Parrigan does not require defense counsel to
speak when he is excusably ignorant of the factual basis of objection later
asserted. The rule of Slayton v. Parrigan requires a trial lawyer to assert his
objections in a timely fashion, but considerations of timeliness do not require a
recitation of facts which are unknown to lawyer and client and they are not
chargeable by law with knowledge of them.2 Slayton v. Parrigan is an
expression of a not unreasonable procedural rule designed to promote
orderliness. It need not be distorted into an engine of justice, foreclosing claims
which, for good reasons, could not have been asserted earlier.
10

It is possible that DiPaola may have a claim for habeas relief in the state courts
on the ground of inadequate representation by his trial lawyers when they failed
to file a motion for a new trial or a motion to set aside the verdict. That is only
speculative, however, for the lawyers may have felt it not worth the candle. The
subsequent unlawful entry by other policemen would not affect the legality of
Colavita's presence. There was no factual basis for a motion to strike his
testimony, and they may have reasonably thought that a motion to strike the
physical marijuana exhibit, even if successful, would be held not to warrant a
new trial. The questions which would arise if such a claim were asserted,
however, are not now before us, and what we have said should not be taken as
an expression of opinion upon them.

11

AFFIRMED.

Senior District Judge for the District of Maryland, sitting by designation

See, however, United States v. Bradley, 455 F.2d 1181 (1 Cir.); United States
v. Glassel, 488 F.2d 143 (9 Cir.). Since Colavita had been invited into the
house, and had obtained possession of the marijuana as its apparent purchaser,
those cases suggest that suppression is not required under 3109 by reason of a
subsequent unlawful entry by other policemen

The district judge, thought it inconceivable that DiPaola did not know of the
"no knock" entry. Though he was in a basement room, he thought that DiPaola
and the others with him would have heard of the commotion. There has been no
inquiry as to that, however. We do not know what, if anything, the policeman in
the basement, Colavita, heard